Alla Blaha, Analytics Department expert at UHHRU

Law of Ukraine No. 2505-VIII of 12 July 2018 “On the Legal Status of Missing Persons”

http://zakon3.rada.gov.ua/laws/show/2505-19/print1452597033476494

General information

The law is aimed at the implementation of international humanitarian law in the national legislation as regard the right to know the fate of one’s relatives, and the creation of a national mechanism for the missing persons search. The final and transitional provisions of the Law introduce amendments to a number of Ukrainian laws.^[1]

The law takes into account proposals submitted by UHHRU

• Article 1 has been supplemented with the definition of the term “search groups”.
• Article 11 has been supplemented with the powers to form, lead and coordinate activities of search groups (humanitarian missions).
• Article 17: the list of bodies authorized to keep records of and/or search for missing persons has been expanded with a central executive body, which ensures the forming and implementation of the state policy on the application of international humanitarian law in Ukraine, as well as with the Commission on the Issues of Persons Gone Missing under Special Circumstances (hereinafter – “Commission”).
• The title of Section VI has been changed to “Search for Human Remains, Retrieval of Bodies (Remains) of Deceased (Dead) Persons, Exhumation and Treatment of Human Remains”.
• The final and transitional provisions (Section IX) have been supplemented with a clause on amendments to the Law of Ukraine “On National Police” as regard obligation to inform the Commission about the progress of pre-trial investigations and measures undertaken to find missing persons (including those gone missing under special circumstances) for entering this data into the Unified Register of Persons Gone Missing under Special Circumstances (hereinafter – “Unified Register”).

 Positive aspects

• the concept and legal status of persons gone missing in connection with the armed conflict are defined;
• the rights of missing persons and their relatives are established, as well as the legal consequences of obtaining the legal status of missing person and the government’s obligations before such relatives;
• the creation of a Commission on the Issues of Persons Gone Missing under Special Circumstances is envisaged;
• the creation of a Unified Register of Persons Gone Missing under Special Circumstances is envisaged;
• the procedure for searching for missing persons (including the forming of search groups) is established;
• the procedure for the search for human remains, retrieval of bodies (remains) of deceased (dead) persons, exhumation and treatment of human remains is established.

Controversial points and possible threats

1. In part 4, Article 6, the right of the missing persons’ family members to the pension on the loss of a breadwinner is enshrined. Since the pensions will be granted to citizens, who do not completed a sufficient number of years of pensionable service, the said pensions will essentially be funded at the expense of insurance contributions of other insured persons, which violates the property rights of these persons. In this regard, it would be more logical to provide social aid (rather than pensions), which comes from the state budget.
2. Although the Law is entitled “On the Legal Status of Missing Persons” and extends to actions related to identification, registration and search for such persons (regardless of the circumstances of their disappearance), it nevertheless envisages the creation of the Commission and Unified Register only with regard to persons gone missing under special circumstances. That is, there should be clarified, which persons Sections III and IV of the Law apply to: only to persons gone missing under special circumstances, or to persons who disappeared under other circumstances as well. The said issue is relevant in regards to the practical application of this article, specifically, will relatives of the latter group be able to count on information about their missing relatives to be entered in the Unified Register, and will the Commission coordinate the search for them or not.
3. The Law provides that the Commission will include representatives appointed by various central executive bodies. However, there are no clear criteria for the selection of such representatives (whether these persons are to be selected from among the officials of the listed bodies, or they can be third parties and simply be nominated by these bodies).
4. The Law does not specify the rights of the Commission, thus, it remains unclear which of its actions should be considered lawful. As a result, the issue will arise with the legal grounds for bringing to administrative liability for failure to comply with the lawful requirements of the Commission (under Article 188-51, with which the Law supplemented the Code on Administrative Offenses). This should be taken into account during the drafting of the Regulations on the Commission, which is envisaged by the Article 10 of the Law (this will also specify the Commission’s vague powers given in the Article 11).
5. The Commission is supposed to facilitate missing persons search and investigation of the circumstances of their disappearance/death, but according to the Law these tasks are still to be done by appropriate territorial bodies of the National Police, while the Commission only provides them with information received in reply to inquiries sent to other agencies.
6. The Law provides for the formation of search groups and conduct of “humanitarian search” by them. However, nothing is said about how the gathered information can be used by the law enforcement bodies and courts in criminal proceedings on disappearance/death of persons.
7. Another issue concerns the use of records from the Unified Register as evidence in criminal proceedings on disappearance/death of person.

General conclusion

In general, the Law is acceptable, but the effectiveness of the search mechanism for missing persons will depend on the interpretation of the Law’s certain provisions in practice, as well as on the adoption and implementation of appropriate by-laws. 

[1] Specifically the laws “On Operational and Investigative Activities”, “On the Security Service of Ukraine”, “On Mandatory State Pension Insurance”, “On the National Guard of Ukraine”, “On National Police”, as well as to supplement the Criminal Code of Ukraine with Article 146-1 titled “Forced Disappearance”, the Code of Ukraine on Administrative Offenses with Article 188-51 on non-compliance with the lawful requirements of the Commission on the Issues of Persons Gone Missing under Special Circumstances, as well as to bring into conformity the terminology of the Civil Code of Ukraine and to add the term “armed conflict”.